Health Care Centers of Texas, Inc. v. Dannie Faye Dearmon Nolen

IN THE

TENTH COURT OF APPEALS

No. 10-00-315-CV

     HEALTH CARE CENTERS OF TEXAS, INC.

                                                                         Appellant

     v.

     DANNIE FAYE DEARMON NOLEN,

                                                                         Appellee

From the 58th District Court

Jefferson County, Texas

Trial Court # A-154869-A

                                                                                                                                                                                                                          

MEMORANDUM OPINION

                                                                                                                

      Dannie Faye Dearmon Nolen sued her employer, Health Care Centers of Texas, Inc. d/b/a Nederland Health Care Center (“HCT”), for work-related injuries. A jury found that HCT was negligent and grossly negligent and awarded Nolen actual damages and exemplary damages. HCT filed a motion for judgment notwithstanding the verdict on the issues of gross negligence and exemplary damages. The court granted HCT’s motion for JNOV and signed a judgment awarding Nolen only her actual damages. Nolen filed a motion for new trial. The court signed an order granting a new trial on the gross negligence claim and severing that claim from the remainder of Nolen’s claims. More than fifteen months later, the court signed a judgment in the severed action purporting to reinstate the jury’s verdict on gross negligence and exemplary damages.

BACKGROUND

      The court signed the original judgment in this cause on April 27, 1999, awarding Nolen only her actual damages. Nolen filed her motion for new trial on May 25. The court signed an order on June 29 granting a new trial on the gross negligence claim and severing that claim from the remainder of Nolen’s claims.

      In the severed cause, the court ordered the parties to mediation. After this failed, Nolen filed a motion under the original cause number on May 16, 2000 asking the court to reinstate the jury’s verdict on punitive damages. The court signed an order on August 10 granting Nolen’s motion to reinstate and stating that the jury verdict “will be reinstated.” This order bears the original cause number.

      HCT filed a notice of appeal under the original cause number on September 8, 2000 stating its desire to appeal the order reinstating the verdict on exemplary damages. The Beaumont Court of Appeals docketed HCT’s notice of appeal under appellate cause number 09-00-403-CV. The Beaumont Court transferred HCT’s appeal to this Court pursuant to a docket-equalization transfer order issued by the Supreme Court on September 15, 2000. See Tex. Gov. Code Ann. § 73.001 (Vernon 1998); Peacock v. Travelers Prop. Cas. Ins. Co., 16 S.W.3d 445, 446 (Tex. App.—Waco 2000, no pet.). As with the transfer order in Peacock, the Supreme Court directed the Beaumont Court to transfer to this Court “[t]he first 25 cases . . . filed in the Court of Appeals for the Ninth Court of Appeals District, Beaumont, Texas, on or after September 6, 2000.” Transfer of Cases from Courts of Appeals, Misc. Docket No. 00-9139 (Tex. Sept. 15, 2000); cf. Peacock, 16 S.W.3d at 446.

      The trial court signed a “Final Judgment” under the severed cause number on November 13, 2000 awarding Nolen the exemplary damages originally set by the jury. HCT filed an amended notice of appeal on January 3, 2001, clarifying its intent to appeal the judgment rendered in the severed cause.

THIS COURT’S JURISDICTION

      Under Rule of Appellate Procedure 27.1(a), in civil appeals “a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal.” Tex. R. App. P. 27.1(a). The parties agree that the trial court did not sign its “Final Judgment” in this case until November 13. Thus, assuming without deciding that HCT’s September 8 notice of appeal sufficiently invoked the Beaumont Court’s jurisdiction, such notice was premature.

      Because the court did not sign the final judgment until November 13, HCT’s notice of appeal “was not effective or deemed to have been filed until November [13].” See Peacock, 16 S.W.3d at 446. Accordingly, HCT’s appeal was not among the “first 25 cases . . . filed in the Court of Appeals for the Ninth Court of Appeals District, Beaumont, Texas, on or after September 6, 2000,” which the Supreme Court ordered transferred to this Court. Id. at 446-47.

      Because HCT’s appeal was not among the twenty-five cases ordered transferred by the Supreme Court and because the trial courts of Jefferson County do not fall within the Tenth District, we do not have jurisdiction over this appeal. Id. at 447; Tex. Gov. Code Ann. § 21.201(j), (k) (Vernon 1988). Accordingly, we shall promptly forward HCT’s files to the Beaumont Court of Appeals, so it can determine whether and how it wishes to proceed with this appeal. See Peacock, 16 S.W.3d at 447.

      For the reasons stated, we dismiss HCT’s appeal docketed in this Court under Cause No. 10-00-315-CV for want of jurisdiction.

                                                             PER CURIAM

Before Chief Justice Davis

      Justice Vance and

      Justice Gray

Appeal dismissed for want of jurisdiction

Opinion delivered and filed June 13, 2001

Publish

esented.Ô  (Br. at 8 (citing Jacob at 905).)   

      The elements of indecency with a child are that:

      A person commits an offense if, with a child younger than 17 years and not the person’s spouse, whether the child is of the same or opposite sex, the person:

      (1)  engages in sexual contact with the child or causes the child to engage in sexual contact; or

      (2)  with intent to arouse or gratify the sexual desire of any person:

     (A)  exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or

     (B)  causes the child to expose the child’s anus or any part of the child’s genitals.

Tex. Penal Code Ann. § 21.11(a).  In Section 21.11,

“sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

      (1)  any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or

      (2)  any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

Tex. Penal Code Ann. § 21.11(c).  The indictment alleged that McIntyre “intentionally or knowingly cause[d] the penetration of the sexual organ of D. H., a child who was . . . younger than 17 years of age and not the spouse of [McIntyre], by [McIntyre]’s sexual organ.”  (1 C.R. at 2.)

      In proving sexual assault as alleged in the indictment, the State would have had to prove that McIntyre caused the penetration of the sexual organ of D. H. by McIntyre’s sexual organ.  In order to prove indecency with a child, the State might have proved that McIntyre engaged in sexual contact with D. H. by touching any part of the body of D. H. with any part of the genitals of McIntyre.  Proof of the former includes proof of the latter, plus more, namely penetration.  The trial court did not err in instructing the jury on the lesser included offense of indecency with a child.  We overrule McIntyre’s first issue.

      Having overruled McIntyre’s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed March 21, 2007

Do not publish

[CRPM]